Case Studies, Pendrell Place: Litigation - Third Party Notice
Ascent sues former client: the owners and council members of Pendrell Place, 1819 Pendrell St., Vancouver
A Third Party Notice was filed on behalf of Ascent Real Estate Management Corp. on November 30, 2005 in the Supreme Court of British Columbia in action L021782, one of several outstanding legal actions involving present and former owners of Pendrell Place.
This Third Party Notice names the Strata Corporation as a Third Party Defendant. The Notice states that if Ascent is found liable by the Court to Mr. Oldaker then Ascent will hold the Strata Corporation liable for any monies owed by Ascent.
This Notice names the Defendants as: Ascent Real Estate Management Corp.; Gregory E. Ball; Daphne Bramham; Maximo Campos; Susan Carrier; Ilpo R. Halva; Martin I. Lewis; Sullivan Construction Ltd.; and Owners Strata Plan VR 1008. Unlike previous documents related to L021782, Beverly Lewis has not been included as a Defendant in this Notice.
Months after the action L021782 was filed, Mr. Oldaker dropped the Strata Corporation as defendants. Months later, Mr. Moshonas from the law firm Whitelaw Twinning, acting for Ascent, has filed the Third party Notice.
The Notice asserts that Ascent:
(1) denies liability to the Plaintiff Oldaker;
(2) was retained by the Strata Corporation from February 1, 1999 to June 5, 2001, to provide property management services pursuant to an agreement;
(3) carried out its duties in good faith and at the direction of the Strata Corporation in accordance with the agreement;
(4) any damage suffered by Oldaker was not because of Ascent; and
(5) "If the Plaintiff [Oldaker] suffered loss or damage, as alleged in [Oldaker's] Statement of Claim or at all, which is specifically denied, such loss or damage was caused in whole or in part by the negligence or fault of the Third Party [Owners Strata Plan VR 1008] acting through its council, and this Defendant [Ascent] repeats the allegations in the Statement of Claim [filed by Oldaker] as against the Third Party [Owners Strata Plan VR 1008] and its council."
Vancouver, Pendrell Place: Mr. Monk questions the authority of G. Stephen Hamilton to act for the strata corporation
IN THE SUPREME COURT OF BRITISH COLUMBIA
CASE MANAGEMENT CONFERENCE
RE: PENDRELL PLACE, STRATA PLAN VR 1008
NOVEMBER 28, 2005
BEFORE: MADAME JUSTICE K. GILL
TRANSCRIPT EXCERPT
Mr. Monk questions the authority of G. Stephen Hamilton to act for the Strata Corporation, Strata Plan VR 1008, Pendrell Place, 1819 Pendrell Street, Vancouver, BC, Canada
29 MR. MONK: My Lady, you'll note at the last case
30 management conference it's Mr. Hamilton that
31 brought up this point on behalf of Mr. Lithwick's
32 clients, who told you that Mr. Oldaker's petition
33 would affect other lawsuits. The only other
34 lawsuit that the strata corporation is involved in
35 is L0116 -- 11861, which is in reference to a
36 meeting which was held. So why is Mr. Hamilton
37 addressing Mr. Lithwick's clients' concerns to you
38 at the last case management conference? That's a
39 good question, I believe.
40 My Lady, at the conference held on
41 October 28th, 2005, Mr. Stephen Hamilton explained
42 his inability to respond to Mr. Oldaker's petition
43 was a result of the fact that section 108 of the
44 Strata Property Act made it necessary to convene a
45 meeting of the owners so that funds could be
46 levied for that specific purpose. An emergency
47 meeting of the members of the strata council was
5
1 held on November 2nd, 2005, at which the members
2 of the strata council adopted a resolution for the
3 very first time to engage Mr. Hamilton to
4 represent the respondent and to authorize the use
5 of common funds for that purpose. You will note
6 that being served with Mr. Oldaker's petition on
7 October 4th, 2005, did not create as much of an
8 emergency as did the problem of Mr. Hamilton being
9 paid. Mr. Hamilton did not see fit to advise four
10 members of the strata council, who are
11 Mr. Lithwick's clients, that they had a conflict
12 of interest and could neither attend or vote on
13 those resolutions, nor that section 167(2) of the
14 Strata Act proscribed the use of common funds to
15 pay for his services.
16 My Lady, I'm experiencing deja vu. I will
17 explain how. I here have a tape recording of a
18 meeting of the members of the strata council that
19 was held in Mr. Hamilton's office on May 30th,
20 2001. I was a member and its vice-chair. On this
21 recording you can hear Mr. Gonzales, the husband
22 of Lynne Gonzales, who was also a member of
23 council, and myself, repeatedly asking
24 Mr. Hamilton to explain under whose authority he
25 was proposing to intervene in Mr. Oldaker's
26 original petition to have an administrator
27 appointed or to be acting for the strata at all in
28 that matter. In an attempt to intimidate me,
29 Mr. Hamilton had the notice of call for that
30 council meeting served to me by a process server
31 at the expense of the owners. Upon being
32 requested about his status as corporate counsel,
33 Mr. Hamilton can be heard refusing to answer the
34 question and stating that the council meeting
35 which he -- which he served me with in order to
36 attend was only to address how to deal with
37 Mr. Oldaker's petition and nothing else.
38 Mr. Stephen Hamilton advises Mr. Gonzales and I
39 that he was acting on the basis of a request made
40 by four concerned members of the strata council.
41 When I arrived at Mr. Hamilton's office that day
42 with Mr. and Mrs. Gonzales, we were required to
43 wait in the waiting room for nearly an hour before
44 being allowed in the conference room while
45 Mr. Hamilton --
46 THE COURT: Mr. Monk, I'm going to stop you for a
47 moment. Where are we going with this? What --
6
1 MR. MONK: Where we're going with this, My Lady, is the
2 resolutions that were just passed on November --
3 just last week -- there are four members of
4 council, who are Mr. Lithwick's clients, who stand
5 to lose -- who stand to suffer having to pay us
6 damages, and none of this was disclosed to the
7 owners. They stand to gain directly by having
8 Mr. Hamilton intervene in Mr. Oldaker's petition.
9 That's where I'm going. And, My Lady, if I
10 could --
11 THE COURT: Mr. Monk, I don't want to cut you off in
12 any case, but you do understand that this is a
13 case management conference. We're talking about
14 how to get to the hearing of the petition.
15 MR. MONK: I do understand that, My Lady, but I --
16 Mr. Hamilton has been questioned about his
17 authority to be acting on behalf of the owners --
18 THE COURT: Yes, I understand that.
19 MR. MONK: -- before, during and after. When is the
20 correct time to find out on whose authority
21 Mr. Hamilton is acting?
22 THE COURT: Mr. Monk, there are various ways, I
23 suppose, that you can attack that authority, but
24 the issue has to be before the court in order for
25 there to be a decision. And in the context of
26 simply management conferences, there are not very
27 many decisions that are there to be made. The
28 decisions tend to be about procedural kinds of
29 matters. And while I appreciate that this might
30 be called procedural, it is beyond the usual --
31 MR. MONK: But, My Lady, Mr. Hamilton is standing
32 before you explaining that the owners have passed
33 resolutions while he has omitted to explain the
34 fact that none of the owners have been told that
35 four members of the council are in conflict and
36 should not be presenting them with resolutions nor
37 voting on them. And this information --
38 THE COURT: Mr. Monk, what would you like me to do
39 about that? What are you saying should occur?
40 What ... Is there an order that you are seeking?
41 MR. MONK: Actually, if the court could ask
42 Mr. Hamilton to produce all the resolutions which
43 have been passed in the last five years to approve
44 his funding, that would be very helpful.
45 THE COURT: Mr. Hamilton?
46 MR. R. HAMILTON: Well, this is an issue that has
47 arisen from time to time over the last six years
7
1 while Mr. Stephen Hamilton and I have been
2 involved in various aspects of these cases. It's
3 a concern to my clients, who are two owners, that
4 they've been co-opted to pay for the defence of
5 their actions in the past --
6 THE COURT: Mr. Hamilton, how do you propose that that
7 be addressed in the context of this petition?
8 MR. R. HAMILTON: I realize we're short of time. I
9 think that either Mr. Monk or my client should
10 perhaps consider a notice of motion that would
11 determine the validity of Mr. Stephen Hamilton's
12 continuing to act and if there is a conflict or
13 not. That's an issue I haven't resolved in my
14 mind. It's an issue that would take some time,
15 given the history of this case. And I may not
16 even get instructions to bring that. But Mr. Monk
17 could certainly be able to bring such an
18 application, if it were considered appropriate.
19 And how that would affect the ultimate --
20 THE COURT: Well, that is a matter for you,
21 Mr. Hamilton. I don't direct what motions you
22 should bring or what issues you should raise --
23 MR. R. HAMILTON: I understand. I understand, My Lady.
24 THE COURT: -- before the court. That is up to you.
25 MR. R. HAMILTON: I understand. You asked me, though.
26 THE COURT: Yes.
27 MR. R. HAMILTON: I understood your question to be how
28 could the issue be dealt with, and that is one
29 way, I would think.
30 THE COURT: Do you propose to do that, or are you
31 just --
32 MR. R. HAMILTON: As I say, I have no instructions to
33 do that. I am considering it, and my clients are
34 considering my advice to them on it.
35 MR. MONK: My Lady, Mr. Hamilton's illegal involvement
36 has cost me tens of thousands of dollars. And to
37 suggest that a person like myself who staffs
38 hotels for a living should be the one who
39 regulates this industry and come up with the funds
40 to make this motion is somewhat disturbing to me.
Case Studies, Pendrell Place: Litigation - Case Management Transcript for November 28, 2005
(For an explanation of the Case Management process, as well as other transcripts, please refer to this post.)
November 28, 2005
The court action reference numbers for this transcript are:
L003498
Between: Richard Bedford Oldaker (Petitioner)
And: Strata Plan VR1008 (Respondent)
L011861
Between: Jamie Gonzales, Denise Maureen Hamilton, Christopher Robert Monk, Richard Bedford Oldaker, Nevena and Nikica Vojic (Petitioners)
And: Strata Plan VR1008 (Respondent)
L021782
Between: Richard Bedford Oldaker (Plaintiff)
And: Ascent Real Estate Management Corp., Sullivan Construction Ltd., Gregory E. Ball, Daphne Bramham, Maximo Campos, Susan Carrier, Ilpo R. Halva, Martin I. Lewis and Beverly Lewis, Owners Strata Plan VR 1008 (Defendants)
L032653
Between: Christopher R. Monk, Richard B. Oldaker, Nevan Vojic, Nikica Vojic (Plaintiffs)
And: Barbara M. Coleman, Timothy Dudra, Merrill Fearon, Rizwan Hirjee, William Katerenchuk, Hilary Mason, Gordon Owens (Defendants)
S012351
Between: Denise M. Hamilton, Christopher Robert Monk, Richard Bedford Oldaker, Nevan Vojic, Nikica Vojic (Plaintiffs)
And: Gregory E. Ball, Daphne E. Bramham, Maximo Campos, Susan Carriere, Barbara M. Coleman, Susan V. Erdman, Ilpo R. Halva, Martin I. Lewis, Beverly L. Lewis (Defendants)
S78059
Between: The Owners, Strata Plan VR 1008 (Petitioner)
And: Richard Bedford Oldaker, Bank of Montreal (Respondents)
Case Management Transcript 28 Nov 2005 Pt 1.htm
"Having said that, I would point out now that the engineering evidence has developed into a consensus position that repair to that east wall fifth and sixth levels is necessary and ought to be done. What surprises me now is that we have not the strata corporation coming to the court and saying, we are now prepared to consent to an order that there be a repair to the fifth and sixth floors, but we are going to defend this petition in light of the evidence of their own engineers. It seems almost too hard -- it's hard for me to understand."
Case Management Transcript 28 Nov 2005 Pt 2.htm
"...I'll tell you one thing I will not agree to: their promises. Their promises have been given many times, as the evidence is clear, and a promise is not going to do it."
Case Studies, Pendrell Place: Levelton Report (November 21, 2005)
This new report from Levelton Engineering serves to update the Owners with respect to the condition of the East wall of Pendrell Place.
Levelton cut viewing ports into the stucco clad sections of the East wall and observed corrosion of the metal hat-tracks supporting the stucco panels of the wall.
It is Levelton's recommendation to replace the panels with a new rainscreen building envelope and to seal the exposed concrete portions of the East wall.
This is precisely the type of work that Mr. Oldaker has insisted on since 2000. When the recommended work is done, Mr. Oldaker will be able to restore the interior of his leaky rotten moldy condo penthouse in accordance with the building permit issued by the City of Vancouver.
Currently, Mr. Oldaker cannot undertake repairs to the interior of his suite without repairs being done to the east wall, which is the exterior wall of his penthouse and which is exposed to wind-driven rain.
Previous work undertaken at Pendrell Place addressed the north, south and west elevations of the building, leaving the most exposed east wall not fixed and Mr. Oldaker's leaky condo uninhabitable for five years.
Report from Levelton 21 Nov 2005.pdf
Castle Beach Club (Miami): Owners regain control of condo
Article Courtesy of the Miami Herald
Published November 18, 2005
For the first time in seven months, condominium owners in the troubled Castle Beach Club have regained political control over their dilapidated building.
Court-ordered condominium elections on Sunday produced a new board -- one promptly ratified by the same Miami-Dade judge who suspended the previous board when the city ordered the residents to evacuate the 527-unit building.
The city cited multiple life-safety code violations that went unrepaired as bitter disputes between the condo board and other residents flared.
A court-appointed receiver who had control over the building still manages its finances, but now the five newly elected condo representatives have regained an important voice in its future.
''This means a return to democracy in the building, because for the first time in seven months we finally have a voice in matters concerning our building,'' said attorney Angel Leal, one of the new board members. ``It's important because this means for the first time there is some light at the end of the tunnel.''
The other new members of the board are: Elizabeth Izquierdo, Sergio Purrinos, Juan Gonzalez and Margarita Suarez-Rivas.
Since the evacuation at 5445 Collins Ave., hundreds of residents have suffered under the financial burden of maintenance fees, mortgage payments and special building assessments for apartments in which they can't live. Many risk losing their units to foreclosure.
The new board, which must answer to court receiver Robert Stone on financial matters for an unspecified transition period, faces daunting challenges.
One of the two engineers hired by the receiver, John Pistorino, has estimated that it would take $25 million to bring the building up to code. The second engineer hired by Stone, Reymundo Miranda, has developed a $4 million plan that he says could cover the minimum repairs while still allowing residents to return to their apartments.
The other repairs would be dealt with later under Miranda's plan.
''We expect the new board will meet with engineers next week and establish the initial funding requirement for first phase of the rehab plan,'' said Joseph Ganguzza, an attorney who represents the five new board members and many of the owners who supported them. ``With that phase, we hope to get the building open, hopefully in a time frame of six weeks.''
The funding for that initial phase will likely come from a special assessment because of the difficulty in obtaining financing, Ganguzza said.
Because the building has been declared unsafe by the city and the fact that some unit owners have begun to default on their maintenance fees, few lenders are willing to consider financing the multimillion-dollar repairs.
